IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 11, 2022 Session

STATE OF TENNESSEE v. TOBY MICHAEL HOLMES

Appeal from the Circuit Court for Grundy County

No. 2018-CR-6093 Thomas W. Graham, Judge

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No. M2020-01539-CCA-R3-CD

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A Grundy County grand jury indicted the Defendant, Toby Michael Holmes, for voluntary 

manslaughter. A jury convicted him of the lesser-included offense of criminally negligent 

homicide. The Defendant sought judicial diversion. The trial court denied judicial 

diversion and sentenced the Defendant to three years of probation, with 1,768 hours of 

community service to be performed at a local drug recovery center. On appeal, the 

Defendant asserts that: (1) he was not properly convicted of the lesser-included offense of 

criminally negligent homicide; (2) the trial court improperly denied judicial diversion; and

(3) the amount of community service was excessive. After review, we conclude that the 

trial court erred by denying judicial diversion and grant the Defendant’s request. The trial 

court’s judgment is affirmed in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in 

Part, Reversed in Part; Case Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

Clifton B. Sobel, Jr., Murfreesboro, Tennessee, for the appellant, Toby Michael Holmes.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant 

Attorney General; J. Michael Taylor, District Attorney General; and David L. Shinn, Jr.,

and Courtney Lynch, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

OPINION

I. Facts

This case arises from the Defendant, a Sheriff’s deputy at the time, initiating a traffic 

stop based upon a driver speeding. When the driver did not stop, a high-speed chase 

06/23/2022
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ensued. After the vehicle stopped, the Defendant exited his patrol car with his service 

weapon drawn and ordered the driver to exit the vehicle. The driver pointed a gun at the 

Defendant and drove the vehicle towards the Defendant. As the vehicle sped past, the 

Defendant jumped behind his patrol car and fired his service weapon into the vehicle’s 

front windshield, driver’s side door, and rear windshield, killing the twenty-year-old 

passenger, Shelby Comer (“the victim”). A Grundy County grand jury indicted the

Defendant for voluntary manslaughter.

At trial the parties presented the following evidence: On the night of December 23, 

2017, Grundy County Sheriff Clint Shrum responded to B Mine Road in the Flat Branch 

area. Law enforcement officers were on the scene, but emergency personnel had not yet 

arrived. Sheriff Shrum noticed a Ford Mustang in a ditch. The car had bucket seats. The 

victim was lying “in the driver’s side front seat. Her front right foot [was] hanging in the 

door, or on the door. Left foot just hanging down.” The victim’s head was “[k]ind of . . . 

hanging toward the console,” and her body was “laid back . . . up against the . . . center 

console.” 

Sheriff Shrum said that Deputy Ann King arrived at the scene. Deputy King 

checked the victim for a pulse and got her out of the vehicle. Once on the roadway, Deputy 

King performed cardiopulmonary resuscitation (CPR) on the victim, but the victim showed 

no signs of life. Shortly thereafter, the paramedics arrived at the scene. 

Sheriff Shrum identified his office’s “Use of Force and Deadly Force Policy.” He 

read the following excerpt from the Law Enforcement Policies and Procedures document:

Use of Deadly Force:

Deadly force may not be used under the following circumstances:

1. As a warning or threat;

2. With the intent to maim or cripple a person;

3. On a person who has not caused or threatened to cause serious 

bodily injury or death to another person, including the officer;

4. On a person who simply flees or evades arrest;

5. At or from a moving vehicle, except in exigent circumstances, and 

only in an attempt to save human life;

6. Merely to prevent the destruction or theft of property; or
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7. When the officer has any doubt as to the justification for using 

deadly force.

Sheriff Shrum also identified the Defendant’s signed receipt for the Grundy County 

Sheriff’s Office Policy and Procedures Manual. The Defendant signed the document on

May 23, 2017, acknowledging that he agreed to read and know the policies and procedures. 

The State entered into evidence the Incident Report the Defendant completed on 

December 26, 2017, identifying the driver of the Mustang and the victim. Sheriff Shrum 

read the narrative written by the Defendant in the Incident Report as follows:

On December 23, 2017, I, Deputy Mike Holmes, was on routine patrol at 

Coalmont Elementary School when I heard a vehicle on Highway 56 

accelerating at a high rate. I saw a dark colored Ford Mustang come pas[t] 

the school at a very high rate of speed. I pulled on to Highway 56 and 

attempted to get a visual on the vehicle. On the highway in front of the 

Coalmont . . . EMS station I made visual contact with two sets of tail lights. 

The first car that I came in contact with was a white Toyota four door car. I 

activated my emergency equipment and passed that vehicle in an attempt to 

catch up to the other vehicle. Around Roddy Springs Road I caught up with 

a dark gray Ford Mustang displaying Tennessee license plate 8G86V5 

traveling around 70 miles per hour. I activated my emergency equipment. 

The vehicle did not stop. At Q Switch Road the vehicle slowed down in what 

I thought was an attempt to stop. The vehicle accelerated after turning and 

was unable to maintain control or stay in their lane of travel. The vehicle 

appeared to be occupied with two people. When the vehicle got to the 

intersection of Q Switch Road and Flat Branch Road it stopped 

approximately twenty five yards from the intersection and then accelerated 

again. The vehicle then turned left on to Flat Branch Road. The vehicle then 

turned onto B Mine Road and was unable to maintain control of the vehicle. 

We proceeded up the hill on B Mine Road. Approximately halfway up the 

hill on B Mine Road the vehicle pulled to the right into the grass. I exited 

my patrol vehicle in a traffic stop. The vehicle accelerated again and turned 

around facing right at me. I drew my service weapon and pointed it at the 

driver of the vehicle. I ordered the occupants to show their hands and stop 

the vehicle. The driver then aimed a silver handgun at me over the steering 

wheel. I fired my weapon at the driver. The vehicle then started to accelerate 

towards me. I stepped in front of my vehicle and fired at the driver’s side 

door of the vehicle as it went pas[t] me. The vehicle then struck my patrol 

car and rolled down the driver’s side of the vehicle. It then accelerated off. 

. . . I stepped from the front of my patrol car and fired at the rear window of 

the car, at the driver’s side. After firing once at the rear of the vehicle, Deputy 
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T.J. Bean was coming up the hill, so I didn’t fire again. The Mustang hit 

Deputy Bean’s car on the driver’s side and went through the ditch. After 

turning my vehicle around and attempting to catch up to the vehicle I could 

not see taillights. Deputies Bean, Payne, Young and myself searched the area 

looking for the vehicle. At that time a perimeter was set up at the ends of B 

Mine Road and Flat Branch Spur. Two vehicles were allowed through the 

perimeter, one was a resident and one who was in the area to pick up his 

daughter from a residence. Approximately fifteen minutes after the initial 

contact a subject called 911 and advised that there was a car in the ditch on 

B Mine Road and a male subject had approached him stating he had ‘been 

shot and needed a ride.’ Units left the perimeter and went in search of the 

subject. At the bottom of the hill on B Mine Road myself, Deputy Bean, 

Chief Deputy Tony Bean, Constable Chris Boyd and his wife Ann found the 

Mustang on the left side of the road in a deep ditch full of water. The driver’s 

door was open and a female was laying [sic] in the front driver’s seat with 

her right leg laying on the window’s door sill. The female was removed from 

the vehicle and CPR was began. Grundy EMS Medic 3 arrived, loaded the 

female in their unit and left. Additional deputies arrived on the scene and 

began to search for the male subject in the vehicle, later identified as Jacky 

Wayne Bean, (date of birth 3/21/85). Mr. Bean is charged with attempted 

first degree murder, felony evading, three counts of reckless endangerment, 

driving under the influence, violation of implied consent, driving on revoked 

and felon in possession of a firearm.

The Defendant completed a Supplemental Report on December 28, 2017, that provided:

During the initial portion of this pursuit I attempted to activate my body worn 

camera. It would not activate. After this incident was over I tested my 

camera and the battery was not seated in the housing correctly. I reseated the 

battery and the camera booted up.

Sheriff Shrum testified that the Defendant began working part-time for the Sheriff’s 

Department on July 3, 2017, and was still working part-time on December 23, 2017. 

Sheriff Shrum confirmed that a deputy must have been “POST certified” before they could

be employed full-time. To do so, one must have successfully attended the Tennessee Law 

Enforcement Training Academy, finished over 491 hours of training, and obtained the 

approval of the Peace Officers of the State of Tennessee (“POST”) Commission. Potential 

full-time deputies had six months to become POST certified but could work part-time 

indefinitely if they never became POST certified. Sheriff Shrum stated that, at the time of 

this incident, the Defendant was not POST certified. 
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On cross-examination, Sheriff Shrum stated that the Defendant had thirteen years 

of experience in various law enforcement offices before working in his office. He said that 

the Defendant’s part-time status was due to “budget concerns.” During his employment 

with the Grundy County Sheriff’s Department, the Defendant completed eighty hours of 

in-service training in ten months. Sheriff Shrum confirmed that he viewed the Defendant 

as one of his “finest deputies.” Following the shooting, Sheriff Shrum decommissioned 

the Defendant as a patrol officer but continued to employ the Defendant as an evidence 

custodian. 

Jimmy Ryan, a resident of B Mine Road, drove home from work on the evening of 

December 23, 2017, and was met by law enforcement officers at the beginning of B Mine 

Road. After questioning, law enforcement permitted Mr. Ryan to drive home on B Mine 

Road. As he drove down the road, he noticed a car “s[i]tting off in the swamp with a foot 

sticking out of the driver’s side window.” Mr. Ryan stopped in the middle of the road “to 

see what [was] going on,” and his passenger door “was swung open.” A man stood inside

the open car door and told Mr. Ryan that he had been shot. The man, later identified as 

Mr. Bean, the driver of the Mustang, asked Mr. Ryan to “take him out of there.” Mr. Ryan 

declined and asked the man to step away from his vehicle. The man complied. Mr. Ryan 

drove up the road approximately 1000 feet and then pulled over to call 911. 

The Grundy County 911 Center Director Wanda McDaniel provided a recording of 

the 911 call and the CAD generated incident report from December 23, 2017. Ms. 

McDaniel explained that a CAD report was a “computer generated report” and that 911 

began a CAD report each time an officer called in with information related to a possible 

violation of the law, such as a traffic infraction. Ms. McDaniel explained that the CAD 

system recorded all communication related to an incident such as phone calls or officers 

speaking through the radio system. The State played a recording of all of the “radio traffic” 

between the officers at the scene. The CAD report indicated that the first call identifying 

the Mustang was at 10:33 p.m. Ms. McDaniel explained that when an officer saw a traffic 

violation, they “radio[ed] it in.” At 10:33 p.m., the Defendant reported, “He is going 45.” 

Ten seconds later, the Defendant reported, “He is all over the road.” Approximately three 

minutes after the initial report, the Defendant advised, “[S]hots fired.” These statements 

were documented on the report and could be heard on the recorded radio calls. A minute 

later, the Defendant placed a radio call indicating that the vehicle was driving “back 

towards Q Switch.” The Defendant advised that the driver had pointed a gun at the 

Defendant and that the Defendant had fired his weapon. The Defendant advised that there 

were two occupants of the vehicle and that the occupant of the passenger’s seat as possibly 

female. He reported that the driver’s gun was “chrome looking.”

Paramedic Tyler King responded to the December 23, 2017 call, arriving at 11:05 

p.m. He observed a Mustang in the ditch line. Due to the unsafe nature of the scene, he 

did not look at the car. He found a young female lying in the middle of the highway. She 
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was unresponsive, she did not have a pulse, her pupils were fixed and dilated, and she was 

not breathing. Law enforcement officers were performing “high-quality” CPR. Mr. King 

estimated that the victim had been dead for less than an hour. Mr. King described the 

treatment administered on the drive to the hospital, noting that he did not see blood or a 

gunshot wound on the victim’s body. 

Kevin Campbell, who lived on Big Mine Road,1testified that at around 9:00 p.m. 

on December 23, 2017, Mr. Bean and the victim arrived at his home in a Mustang. He had 

known Mr. Bean for about six to eight months. Mr. Campbell estimated that Mr. Bean 

stayed at Mr. Campbell’s home approximately an hour and twenty minutes, during which 

time the victim remained in the car. At around 10:13 p.m., Mr. Campbell spoke to the 

victim in the Mustang as she and Mr. Bean prepared to leave. While at Mr. Campbell’s 

residence, Mr. Bean had a Hi-Point .380 pistol. Mr. Bean carried the gun “tucked in the 

front of his pants”; however, when he laid it on the table, Mr. Campbell observed that the 

gun was “all to pieces” because Mr. Bean had “broke it down” and “the springs went ever 

which way.” Mr. Campbell testified that he was familiar with how to take a pistol apart 

and put it back together and that, in his opinion, Mr. Bean’s gun was not usable. Mr. 

Campbell explained that Mr. Bean had lost the spring for the firing pin, so, even had he 

successfully reassembled the gun, it would not have fired. Mr. Campbell attempted to help 

Mr. Bean put the gun back together, but, with the missing spring, there was nothing he 

could do. After the two men worked on the gun, Mr. Bean put the gun back in his pants. 

Tennessee Bureau of Investigation (“TBI”) Special Agent Mark Wilson testified 

that he arrived at the crime scene at 1:07 a.m. on December 24, 2017. After speaking with 

Special Agent Chip Andy and Sheriff Shrum, Special Agent Wilson began processing the 

scene according to the TBI policy for officer-involved shootings. Special Agent Wilson 

photographed the Defendant and then conducted a recorded interview with him. 

Mr. Bean testified that he had prior felony convictions and, at the time of trial, a 

pending probation violation. He explained that most of his criminal history could be 

attributed to his “problem” with methamphetamine. Mr. Bean recalled that on the day of 

the incident, he was in Winchester with the victim, who was “kind of” his girlfriend. He 

traded methamphetamine to “rent” the Mustang. Mr. Bean drove the victim to Grundy 

County to retrieve some of her belongings from a residence there. They then went to Mr. 

Campbell’s house on Big Mine Road to retrieve some of Mr. Bean’s clothes. Mr. Bean 

went inside Mr. Campbell’s house while the victim remained in the car. He estimated that 

he was in Mr. Campbell’s house approximately thirty minutes. Mr. Bean denied having a 

gun when he entered Mr. Campbell’s home. 

 

1 Although the street names are similar, B Mine Road and Big Mine Road are different streets.
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Mr. Bean testified that the victim was alive when they left Mr. Campbell’s house. 

They drove up “to the junction” to get something to eat, but the victim decided that nothing 

there appealed to her. They decided to return to Winchester. Mr. Bean confirmed that he 

had used methamphetamine before he left Mr. Campbell’s house. He recalled that the 

victim had used methamphetamine earlier in the day but not while at Mr. Campbell’s 

house. As he drove away from the L & L Market, a police officer attempted to make a 

traffic stop. Mr. Bean did not comply. 

Mr. Bean explained that he did not stop his vehicle because he did not have a 

driver’s license and did not want to go to jail. When he turned onto B Mine Road, the 

victim told him that the road was a dead end. After passing a “curvy part” of the road, he 

saw a grassy area large enough to attempt a U-turn. When he did so, the police officer 

blocked him. Mr. Bean put his foot on the brake, and the Defendant exited his service 

vehicle while firing his gun. Mr. Bean denied having a gun in his hand. He also denied 

that the victim had a gun, saying that the victim was holding an eleven-week-old puppy in 

her lap. The Defendant’s first shot hit the windshield and did not strike either Mr. Bean or 

the victim. Mr. Bean ducked down, and when the gunfire continued, he “tried to get out 

of there.” Mr. Bean could not see where he was driving because he was seated down low 

to avoid the gunfire. He denied trying to run over the Defendant. He “vaguely” 

remembered hitting the side of the police car as he attempted to drive away. After he hit 

the Defendant’s vehicle, he heard the victim scream, “I’ve been shot.” He told her he 

would take her to the hospital, but, as they passed another law enforcement vehicle on the 

road, the Mustang’s headlights went out, Mr. Bean missed the curve in the road, and he 

drove off the side of the road into a ditch. 

Mr. Bean testified that when they crashed, the victim was screaming. He exited the 

vehicle, and the victim crawled over the center console to get out through the driver’s side 

door. After the victim climbed out of the vehicle, she went “limp,” and Mr. Bean caught 

her. When he could not get the victim to respond, he placed her back in the driver’s seat. 

A car stopped on the road, and Mr. Bean approached, asking the man for help, but the man 

declined. Mr. Bean walked a hundred to a hundred and fifty yards into the woods and lay

down. He explained that he left the victim in the Mustang out of fear that the officers 

would shoot him if they found him. Around daylight, Mr. Bean heard someone nearby, 

and he “raised up.” The police saw him and took him to Sewanee Hospital. Mr. Bean did 

not remember much about the hospital stay. 

Tennessee Bureau of Investigation (“TBI”) Special Agent Elizabeth Williams 

reported to the hospital to photograph the victim’s body. She first spoke with hospital 

personnel who did not mention a gunshot wound. As Special Agent Williams examined 

and photographed the body, she found a gunshot wound on the victim’s left side. The 

doctor returned to the room and indicated that the wound could be a gunshot wound and 

that “particles” on the X-rays could be bullet fragments; however, they would have to “wait 
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to see.” She collected an orange shirt and a grey shirt from the victim for analysis. Special 

Agent Williams also attended the autopsy.

Special Agent Williams spoke with Mr. Bean the day after the shooting. He was in 

the hospital, lying on a bed in a “a state of semi-asleep.” Medical personnel informed 

Special Agent Williams that no medication had yet been administered to Mr. Bean. Special 

Agent Williams recalled that Mr. Bean answered her questions appropriately but that at 

times, he was difficult to hear, and she had to repeat her questions. She stated that Mr. 

Bean cried several times during the interview as they spoke of the victim’s death. 

TBI Special Agent Laura Boos testified as an expert in DNA. Special Agent Boos 

reported to the scene and photographed and collected thirteen cartridge cases, glass, paint, 

and plastic fragments for further analysis. Law enforcement also found a syringe in the 

grass near the Mustang and a shoe and a hat between the Mustang and the roadway. Special 

Agent Boos noted from photographs that several holes were in the Mustang and that the 

windshield and taillight were damaged. She also photographed the Defendant’s vehicle, 

noting some damage but stating that the vehicle did not appear to be “severely damaged.” 

She described “some scratches down the side.” 

Special Agent Boos swabbed several areas inside the Mustang and tested those 

swabs. The presumptive tests did not indicate the presence of blood. A substance collected 

from the driver’s seat, although not blood, matched the victim’s DNA sample. Another

swab collected from the Mustang’s dashboard tested positive for the presence of blood,

and the DNA matched the victim’s known DNA sample. The syringe that was collected at 

the scene was swabbed and analysis revealed DNA that matched the victim’s known DNA 

profile. A grey jacket with a red substance on it was collected, and the red substance tested 

positive for the presence of blood. The DNA profile from the substance on the jacket

matched the victim’s known DNA profile. Special Agent Boos also tested the two shirts 

collected at the hospital. Multiple areas on both shirts tested positive for the presence of 

blood. 

TBI Special Agent Jessica Hudson examined the fired .357 SIG caliber cartridge 

cases recovered at the scene and the Defendant’s Glock .357 SIG caliber pistol. Special 

Agent Hudson identified “bullet fragments, copper jacket fragments or lead fragments”

recovered from the Ford Mustang. Special Agent Hudson microscopically compared the 

cartridge cases, bullet, and bullet fragments with fired cartridge cases and bullets from the 

Glock .357 SIG caliber pistol. All of the cartridge cases recovered at the scene were fired 

from the Glock pistol. As to the bullet fragments and bullets, some bore all the same 

characteristics as the Glock pistol, and some bore no markings of comparison value.

Special Agent Hudson also examined the Mustang. She found nine holes, consistent 

with bullet holes, on the outside of the vehicle. One bullet hole was in the driver’s side 
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windshield, and four holes were in the driver’s door. Another hole was in the driver’s side 

taillight; the bullet traveled through the trunk, through back seat, and into the back of the 

passenger’s seat. Two holes were in the rear bumper. One hole was in the license plate; 

the bullet perforated the trunk and entered the rear passenger’s wheel-well area. The bullet

recovered from the victim’s body shared the same class characteristics as the Defendant’s 

service weapon. 

TBI Special Agent Kyle Osborne tested Mr. Bean’s jacket and found the presence 

of gunshot primer residue. He also examined glass from the penetrating impact on the 

Mustang’s windshield. Examination revealed one penetrating impact through the 

windshield and that the force that caused the impact moved from the exterior of the vehicle 

toward the interior side of the windshield. 

TBI Special Agent Randall Nelson compared fragments of glass found on Mr. 

Bean’s jacket with glass standards collected from the rear and driver’s window of the 

Mustang. The glass recovered from Mr. Bean’s jacket matched the glass standard from the 

rear window. 

 

TBI Special Agent Joseph Castelbuono testified that he worked as a toxicologist and 

that he analyzed Mr. Bean’s blood sample. The blood sample revealed methamphetamine 

at 0.63 micrograms per milliliter and amphetamine, present when the body metabolizes 

methamphetamine, at .06 micrograms per milliliter. He explained that methamphetamine 

was a potent stimulant that caused the average person to experience jitteriness, paranoia, 

and aggression. It could cause a person to engage in adverse risk behaviors. 

Dr. Randy Tashjian, a forensic pathologist, testified that he performed the autopsy 

in this case. Dr. Tashjian found a gunshot wound on the left side of the victim’s back. Dr. 

Tashjian testified that a wound looked differently if inflicted post-mortem. The color and 

appearance of an injury inflicted before death were different due to the heart beating and 

blood pressure. The gunshot wound in this case had an appearance consistent with an 

injury inflicted before death. 

About the victim’s injuries related to the gunshot wound, Dr. Tashjian testified that 

he found bleeding in the body cavities and injuries to the left lung, left side of the 

diaphragm, the spleen, left kidney, colon, ascending colon, and the aspiration of blood into 

the airways. Dr. Tashjian collected the bullet that was lodged in the victim’s ascending 

colon. Dr. Tashjian testified that the victim’s cause of death was a gunshot wound to the 

torso. Dr. Tashjian collected blood from the thoracic cavity and sent it to a laboratory for 

testing. The testing of the victim’s blood revealed the presence of methamphetamine, 

“metabolite methamphetamine,” and cannabinoids. Dr. Tashjian considered the toxicology 

report when determining the cause of death and concluded that the victim did not die due 
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to an overdose. Dr. Tashjian opined that the injuries the victim sustained would not have 

caused instantaneous death nor would they have incapacitated her. 

The State concluded its case-in-chief, and the Defendant presented the following 

evidence: Senior Alabama State Medical Examiner Edward A. Reedy viewed a photograph 

of the bullet recovered from the victim’s body. He described the bullet as “intact, but 

slightly deformed.” He reviewed the autopsy report and the photographs taken during the 

autopsy. He generally agreed with the findings in the autopsy report except that he believed 

there was “maybe a misstatement” regarding the bullet path and there were no 

measurements of the defects in the injured organs. He said that measurements would have 

provided more information on how profusely the victim may have bled after sustaining the 

injury and would have confirmed the actual wound path. 

Dr. Reedy thought the autopsy procedure was done adequately, but he disagreed 

with the cause of death. Based upon the toxicology report, he believed the victim died 

prior to the shooting from a drug overdose based upon the 3,400 nanograms per milliliter 

of methamphetamine present in the victim’s blood. Dr. Reedy testified that he did not 

believe there was a significant amount of blood found in the chest cavity to support a 

finding that the victim “bled out” due to the gunshot wound. He said that normally in 

gunshot wound cases there was a greater amount of blood present. He “presume[d]” the 

blood in the chest cavity came from the spleen and left kidney which were “highly 

vascular.” He noted that those organs were not photographed, which precluded him from 

evaluating the severity of the injuries to the left kidney and spleen. He believed that the 

blood in the victim’s abdomen came from the CPR efforts. 

Based upon his review of the autopsy documents, Dr. Reedy believed that the victim 

was dead at the time the bullet entered her body. He stated that the victim’s reported level 

of 3400 nanograms per milliliter was well within the reported fatal range for 

methamphetamine, which was from 100 nanograms per milliliter to 69,000 nanograms per 

milliliter. He explained that the reported fatal range was broad to encompass the varying 

range of reactions to the drug by different people. 

On cross-examination, Dr. Reedy agreed that the victim “could have died from that 

gunshot wound based upon what [he] saw in that autopsy.” 

Chris Boyd testified that he worked for the Grundy County Sheriff’s Department in 

20172and reported to the scene with another deputy, Ann King. As one of the first officers 

to arrive at the scene, Deputy Boyd “cleared the vehicle” to ensure the officers’ safety. He 

recalled that the vehicle was running and that the victim was lying across the driver’s side 

 

2 Deputy Boyd testified that, at the time of trial, he worked for “Rogers Group.” He also served as 

a Tennessee constable and volunteered with the fire department and rescue squad.
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seat and the console. One of the victim’s legs was “across the seat” while the other was 

“on the door.” After Deputy Boyd reported to Sheriff Shrum that the vehicle was “clear” 

of any weapons, Sheriff Shrum allowed Deputy King to retrieve the victim.

Law enforcement officers moved the victim up the bank of the ditch and onto the 

road where the deputies began administering CPR. Deputy Boyd had not seen any blood 

pooling in the car. While administering CPR, Deputy Boyd noticed the victim’s skin was 

pale and “abnormally” cold. He commented to the other deputies that he thought the victim 

“had been down for some time.” The CAD report reflected that the Defendant requested 

Emergency Medical Services at 11:00 p.m. December 23, 2017.

Ann King worked for the Grundy County Sheriff’s Department in December 2017.3 

On the night of December 23, 2017, she and Deputy Boyd were “getting home” when they 

heard the Defendant on the police radio reporting that he was “in pursuit.” She and Deputy 

Boyd drove to the area to assist. They arrived about the time the sheriff and the Defendant 

“had showed back up where this car was found.” Deputy Boyd cleared the vehicle and 

then Deputy King retrieved the victim from the car. She surveyed the victim for blood and 

found none. She described the victim as “cold” and said that the victim’s clothing was 

askew. Deputy King carried the victim to the roadway. The victim’s lower half became 

wet due to the water in the ditch. 

On cross-examination, Deputy King agreed that she and Deputy Boyd “just sort of 

r[o]de around and help[ed] out the police any time when they need[ed] help.” 

The Defendant testified that, at the time of trial, he worked at the Grundy County 

Sheriff’s Office as an evidence custodian. He also served as the fire chief for Monteagle 

and worked for a company called Mid-South Emergency Equipment selling fire equipment. 

He recalled the events of December 23, 2017, saying he was at Coalmont Elementary 

School ensuring the building was secure since it was Christmas break. 

As he was leaving the school, he saw a dark-colored Ford Mustang driving at a high 

rate of speed on Highway 56. He estimated the vehicle was driving close to 100 miles per 

hour. He drove onto Highway 56 and caught up with the Mustang near Roddy Springs 

Road. He described the Mustang as driving “all over the place.” When he was within 

twenty yards of the Mustang, he engaged his emergency equipment, but the Mustang 

continued driving. The cars continued down Highway 56 until they reached Q Switch 

Road. The Mustang braked abruptly, turned onto Q Switch Road, and stopped. The 

Defendant pulled over as well, and the Mustang took off again, fishtailing and leaving 

 

3 Deputy King testified that, at the time of trial, she worked as a manager at Silver Bait, a worm 

farm. She was also “on” the Beersheba Rescue Squad and the Altamont Fire Department.
- 12 -

black marks on the roadway. As they approached a stop sign, the Mustang again abruptly 

applied its brakes before accelerating up to the stop sign. 

Up until this point the Defendant believed this was likely a drunk driver who was

hoping to avoid arrest, but with this second abrupt stop, the Defendant became concerned 

that this “was probably something a little more serious.” The Defendant followed the 

Mustang as it turned left onto Flat Branch and then as it turned right onto B Mine Road. 

Knowing that B Mine Road was a dead end, the Defendant assumed the driver, who was 

later identified as Mr. Bean, was lost. The Mustang pulled off the road into the grass and 

stopped. The Defendant stopped his vehicle and walked around to the front of his car so 

he could see into the driver’s window of the Mustang. He drew his firearm and ordered 

the occupants of the Mustang to show their hands. Mr. Bean spun the Mustang around so 

that it faced the Defendant. The Defendant pointed his gun at Mr. Bean and ordered him 

to show his hands. The Defendant stated that Mr. Bean sat a gun on the steering wheel. 

Upon seeing the gun, the Defendant began firing his service weapon. 

As the Defendant shot at the Mustang, Mr. Bean drove toward the Defendant who 

jumped out of the way. As Mr. Bean drove past the Defendant, the Defendant fired at the 

driver’s side door. Mr. Bean hit the driver’s side of the Defendant’s patrol car and then 

stopped. The Defendant walked toward the Mustang, and Mr. Bean drove away. The 

Defendant confirmed that he saw someone in the passenger seat of the Mustang. As the 

Mustang pulled away from the Defendant, the Defendant could see the emergency lights 

from the back-up officer driving toward the Mustang, and he could hear a siren. As the 

Mustang drove away from the Defendant, the Defendant fired into the rear of the Mustang. 

Mr. Bean did not stop but drove on, hitting the back-up officer, Sergeant Bean’s4car and 

then “bounced off and went on down the hill.” 

The Defendant pursued the Mustang and was unable to locate him initially because 

he did not see the Mustang’s taillights in the ditch. He and Sergeant Bean set up a perimeter 

to try to contain the occupants of the Mustang. Law enforcement allowed two homeowners 

through the perimeter. Several minutes later, dispatch reported that it had received a call 

that a man had flagged down one of the homeowners allowed through the perimeter to ask 

for a ride to the hospital. Officers then began searching the area for ditches and eventually 

found the Mustang in a ditch. Deputy King and Deputy Boyd arrived shortly thereafter 

and retrieved the victim from the car. The Defendant testified that Mr. Bean never fired 

his gun. 

 

4 Although they share the same surname, it does not appear from the record that there is any 

relationship between the law enforcement officer, Sergeant Bean, and the driver of the Mustang, Jacky 

Wayne Bean.
- 13 -

On cross-examination, the Defendant confirmed that he first saw the passenger 

when the car spun around and was facing him. He did not recall writing in his police report 

several days after the event that he saw the passenger at the intersection of Q Switch Road 

and Flat Branch Road. The Defendant agreed that during the preliminary hearing, he 

testified that, once he saw the gun, he moved to the passenger’s side of his patrol vehicle 

before the Mustang started driving again. He agreed that he had testified that he was “six 

or seven feet from the driver’s side – in the front of [his] vehicle over on the passenger’s 

side” when the Mustang passed and struck his patrol vehicle. 

He confirmed that he saw the Mustang hit Sergeant Bean’s car. He agreed that he 

told the TBI agent that Sergeant Bean had attempted to push the Mustang into the ditch 

and that Mr. Bean accelerated and made it through the ditch. The State introduced 

conflicting statements made by the Defendant about why his body camera did not work. 

Some statements indicated that the battery was dead, and others indicated that the battery 

was not seated properly. In response, the Defendant stated that he did not know whether it 

was because the battery was dead or not seated properly. The Defendant did not recall how 

many times he fired into the back of the Mustang, although in one of his statements to law 

enforcement, he reported shooting “just once.” He agreed that he fired into the back of the 

Mustang more than once and that he “misspoke” if he had said once. He agreed that he 

told the TBI agent that he had fired fifteen times total. 

After hearing this evidence, the trial court granted the Defendant’s motion for 

acquittal on the charged offense of voluntary manslaughter. The trial court, however, 

allowed the State to proceed on the lesser offenses of criminally reckless homicide and 

criminally negligent homicide. The jury initially sent a note to the trial court saying that 

they did not think they were going to be able to reach a verdict. However, after the trial 

court gave the jury a “dynamite charge,” the jury convicted the Defendant of the lesser 

offense of criminally negligent homicide. 

The Defendant filed a motion seeking judicial diversion. After a sentencing hearing, 

the trial court denied judicial diversion and ordered the Defendant to serve three years of 

probation, with 1,768 hours of community service. It is from this judgment that the 

Defendant appeals.

II. Analysis

On appeal, the Defendant asserts that: (1) he was not properly convicted of the 

lesser-included offense of criminally negligent homicide; (2) the trial court improperly 

denied judicial diversion; and (3) the amount of community service was excessive.

A. Criminally Negligent Homicide
- 14 -

The Defendant contends that the trial court improperly amended the indictment by 

dismissing the indicted offense but allowing the jury to consider the lesser-included 

offenses of the indicted offense. He contends that once the trial court dismissed the indicted 

offense, no greater offense existed from which a jury could conclude that a lesser-included

offense had been committed. The State responds the Defendant was properly convicted of 

the lesser-included offense of criminally negligent homicide. We agree with the State.

The grand jury indicted the Defendant for voluntary manslaughter. Tennessee Code 

Annotated section 39-11-211 defines voluntary manslaughter as “the intentional or 

knowing killing of another in a state of passion produced by adequate provocation 

sufficient to lead a reasonable person to act in an irrational manner.” Voluntary 

manslaughter is a Class C felony. At trial, the trial court found that the evidence did not 

support a conviction on the charged offense but submitted to the jury the applicable lesserincluded offenses. The jury convicted the Defendant of the lesser-included offense of 

criminally negligent homicide. Criminally negligent homicide requires “[c]riminally 

negligent conduct that results in death.” Criminally negligent homicide is a Class E felony. 

An indictment or presentment must provide notice of the offense charged, an 

adequate basis for entry of a proper judgment, and suitable protection against double 

jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). As a result, a defendant cannot 

legally be convicted of an offense which is not charged in the indictment or which is not a 

lesser-included offense embraced in the indictment. State v. Cleveland, 959 S.W.2d 548, 

552 (Tenn. 1997). 

In State v. Burns,

5 our supreme court held that trial courts are required to “‘instruct 

the jury on all lesser-included offenses if the evidence introduced at trial is legally 

sufficient to support a conviction for the lesser offense.’” State v. Burns, 6 S.W.3d 453, 

464 (Tenn. 1999) (quoting State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999)). As 

relevant to this appeal, the Burns test provides that an offense is a lesser-included if:

(a) all of its statutory elements are included within the statutory 

elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it 

contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of culpability; . . .

Id. at 466-67.

 

5 Burns was codified in Tennessee Code Annotated section 40-18-110 and then amended in 2009. 

In the 2009 version, the language of subsection (b) was omitted. The Tennessee Supreme Court, however, 

in State v. Howard, 504 S.W.3d 260 (Tenn. 2016), determined that the legislature did not abrogate 

subsection (b). 
- 15 -

In this case, criminally negligent homicide includes a different mental state, 

“criminal negligence,” indicating a lesser kind of culpability. Because criminally negligent 

homicide is a lesser-included offense of the indicted offense of voluntary manslaughter, 

the Defendant was necessarily charged with criminally negligent homicide. The trial court 

is required to charge all applicable lesser-included offenses and therefore, did not err by 

doing so. The Defendant is not entitled to relief as to this issue.

B. Judicial Diversion

The Defendant argues that the trial court erred when it denied his request for judicial 

diversion. The State responds that the trial court acted within its discretion when it denied 

the Defendant’s request. Upon de novo review, we conclude that the trial court erred. 

Accordingly, we reverse the denial of judicial diversion and remand for the trial court to 

grant judicial diversion.

At the Defendant’s sentencing hearing, Ray David Comer testified for the State that 

he was the victim’s father and that the Defendant’s case was highly publicized in the media. 

He said that deputies of the Grundy County Sheriff’s Department, specifically Tony Bean 

and T.J. Bean, had been arrested for federal crimes and that those officers’ cases had been 

highly publicized like the Defendant’s case. The victim’s death affected her family and 

caused Mr. Comer and the victim’s brother to become “standoffish.” Mr. Comer explained 

that his life changed when the victim was killed and that “[a]ny good memories or 

whatever, good times was before December 23rd. Since then it’s just a blank slate, I 

guess.” He said he thought he could have handled the victim’s death “a little better” if she 

had been killed in a car accident but that she had been “murdered.” He said the Defendant 

had not expressed remorse for killing the victim.

Sheriff Shrum testified for the State that the Defendant’s case received “[a] lot of 

regional coverage” in the media and that he released a media statement after the jury 

convicted the Defendant. In the statement, Sheriff Shrum expressed disappointment that 

the Defendant “will not be allowed to protect and serve the place he called home,” whereas 

“[the victim] is still dead and the man that assisted her will never be brought to justice.” 

Sheriff Shrum denied that he thought the loss of the Defendant’s job with the sheriff’s 

department was more important than the victim’s death. He said that based on the evidence 

at trial, he thought the victim died of a drug overdose, not a gunshot wound. 

Sheriff Shrum identified a plea agreement showing that in October 2019, Greg 

Higgins, a former captain for the Grundy County Sheriff’s Department, pled guilty to a 

federal offense for assaulting a handcuffed arrestee in July 2017. Sheriff Shrum also 

identified a federal indictment showing that in July 2019, Chief Deputy Tony Bean and his 

son, T.J. Bean, were indicted for violating the civil rights of an arrestee in December 2017, 
- 16 -

while they were employed by the sheriff’s department. At the time of the Defendant’s 

sentencing hearing, Tony and T.J. Bean were “on administrative leave with pay.” The 

Defendant was indicted for criminally negligent homicide in November 2018, which was 

almost a year after the victim’s death. Prior to the Defendant’s indictment, he remained a 

sheriff’s deputy, and the Grundy County Sheriff’s Department paid for him to attend “the 

academy.” The Defendant was “suspended after indictment” pending the outcome of his 

plea at arraignment. After the Defendant’s arraignment, he became a civil employee of the 

sheriff’s department.

On cross-examination, Sheriff Shrum testified that he would have fired his gun at 

the Mustang if he had seen “somebody throw a gun over the steering wheel and come 

toward me.” The trial court asked if Sheriff Shrum would have fired at the Mustang after 

it passed him, and he answered, “I wasn’t in that situation, you know, Your Honor, but I 

think based just on the fact that the car come to me I would have returned fire. At some 

point you understand that there’s a retreat and you stop that.” Sheriff Shrum acknowledged 

that although the Defendant fired at the Mustang as the Mustang was leaving the scene, 

Sergeant Bean was on his way to the site. Sheriff Shrum noted that there were “16 houses 

in that area as well.” On redirect-examination, Sheriff Shrum testified that he would have 

fired at the Mustang when he saw the gun but that “[i]f the vehicle was passing me, based 

on what I know in my training I would have had to stop firing.” 

James Wilson Cowan testified for the Defendant that he met the Defendant at church 

when the Defendant was nine or ten years old. Mr. Cowan “got to really know” the 

Defendant as a youth in the church when the Defendant was in junior high school. The 

Defendant attended Mr. Cowan’s Sunday School class, participated in the church’s youth 

organization, and was a member of the high school band. The Defendant was respectful, 

truthful, and “a good kid.” The Defendant was an Eagle Scout and earned a college degree, 

and he and his father built a house for Mr. Cowan. The Defendant had a “very good 

reputation” in the community, worked for the rescue squad and the fire department, and 

was elected to the school board. Mr. Cowan said he had never talked with the Defendant 

about the facts of this case. However, Mr. Cowan and the Defendant communicated via 

text messages, and Mr. Cowan tried “to give him some encouragement.” On crossexamination, Mr. Cowan testified that he did not attend the Defendant’s trial but that he 

probably read about the facts of the case in the newspaper.

Beverly Holmes testified that she and the Defendant were married for nine years 

and that they divorced in 2009. They had one son, who was sixteen years old at the time 

of sentencing. Ms. Holmes said that she had been a school teacher for twenty-two years 

and that she was able to attend only one day of the Defendant’s trial. Ms. Holmes and the 

Defendant met when they were in the eighth grade, started dating when they were 

seventeen years old, and attended college together. She said that although they divorced, 

they were “good co-parents” and “just really good friends still.” Ms. Holmes described the 
- 17 -

Defendant as “a hard worker” and said that he was “an involved father when he can be.” 

The Defendant also had a younger son and was “a really great father to his little one.” Ms. 

Holmes said that the Defendant was an honest person and that he was current on his child 

support payments. She stated that the Defendant changed after the shooting and that “I feel 

that it’s taken a toll on him, because he’s so remorseful about it. He hates that a life was 

taken.” The Defendant “seemed more withdrawn” and “[n]ot as outgoing” after the 

shooting. 

On cross-examination, the State asked Ms. Holmes if she ever told anyone that the 

Defendant was a “liar” or “dishonest.” At first, Ms. Holmes said no. However, she later 

acknowledged making those statements and explained, “In some form or fashion we’ve all 

lied.”

The Defendant gave an allocution in which he apologized to the victim’s family for 

“taking” the victim’s life and said he never intended to kill anyone. The Defendant stated 

that he had sole custody of his three-year-old son and that “[i]f I’ve ever had a regret in my 

life, it’s making that decision to pursue that Mustang that night.” He stated that he should 

have discontinued the pursuit, blocked the road, and waited for additional officers to arrive. 

The Defendant said he was responsible for “the changes” in the victim’s family, in his own 

family, and in Grundy County and that he was “truly sorry.”

The State introduced the Defendant’s presentence report into evidence. According 

to the report, the Defendant was forty-three years old and lived with his girlfriend and 

young son from a previous relationship. The Defendant stated in the report that after he 

graduated from high school, he attended Middle Tennessee State University and earned a 

Bachelor of Science degree. The Defendant also stated in the report that his parents 

provided him with a “stable, disciplined and loving home” and that his relationship with 

his family was “close and strong.” He said that he had a “good” relationship with his exwife and that she attended every day of his trial. The Defendant described his mental and 

physical health as “excellent” but said that he suffered from diabetes, that he had to have 

stents implanted in his heart due to complications from two heart attacks, and that he had 

been prescribed several medications. The Defendant said that he first consumed alcohol 

in 1992 and that he consumed one beer “occasionally.” At the time of the presentence 

report, the Defendant had been employed by Mid-South Emergency Equipment since 2018. 

Prior to working for Mid-South, he worked as a salesman for Motorola from March 2012 

to March 2014, as a salesman for Safe Industries from March 2014 to April 2018, as a 

firefighter for Monteagle Voluntary Fire Department from 2016 to 2020, and as a deputy 

for the Grundy County Sheriff’s Department from 2016 to 2020. The report did not show 

any criminal history for the Defendant.

The Defendant’s Strong-R assessment classified his overall risk to reoffend as low. 

The assessment concluded that he had high needs relevant to “Aggression” and specified 
- 18 -

that the Defendant “has displayed threatening, aggressive or violent behaviors in the 

community during his lifetime,” that he “has injured someone with a weapon at some point 

in his/her lifetime,” and that his “threatening, aggressive or violent behaviors have been 

motivated by conflict or stress.” The assessment concluded that the Defendant had low 

needs relevant to “Friends,” “Attitudes/Behaviors,” “Mental Health,” “Alcohol/Drug Use,” 

“Residential,” “Family,” “Employment,” and “Education.”

The State argued that the Defendant’s amenability to correction weighed against 

granting judicial diversion because the Defendant maintained until sentencing that he was 

not responsible for the victim’s death, which showed he lacked remorse, and because “his 

story evolved and changed,” which reflected poorly on his credibility. The State also 

argued that the circumstances of the offense weighed against granting judicial diversion 

because the Defendant was not in danger when he fired into the driver’s window of the 

Mustang and because he continued to fire his gun into the back of the car after it passed 

him. The State acknowledged that the Defendant’s social history weighed in favor of 

granting judicial diversion but asserted that his physical and mental health did not. The 

State noted that the Defendant had suffered two heart attacks and opined that because he 

described his mental health as “excellent” in the presentence report, the victim’s death had 

not affected him. The State also asserted that general deterrence did not support granting 

judicial diversion because “the sheriff’s department thinks it’s a sad day if you can’t shoot 

somebody in [the] back to fight the war on drugs.” The State then referred to the federal 

cases involving Greg Higgins, Tony Bean, and T.J. Bean and stated, “That is a culture that, 

apparently, is permeating -- was happening in this community and it screams for 

deterrence, and denial of a judicial diversion.” Finally, the State argued that judicial 

diversion would not serve the interest of the public as well as the Defendant because “it’s

necessary for the public to know that you can’t go around beating up people who are in 

custody, you can’t go around shooting people in the back.”

Defense counsel contended that the trial court should grant judicial diversion, 

arguing that the trial court should not punish the Defendant for Sheriff Shrum’s thoughts 

about this case and because the Defendant did not have anything to do with the federal

cases. Defense counsel noted that the Defendant was an Eagle Scout, did not have a 

criminal record, never tried to deceive the court, and expressed remorse. Defense counsel 

argued that although the victim’s death was a “tragic loss,” the Defendant “was facing a 

serious credible threat to the safety of this community” and to himself when he shot into 

the Mustang. 

The trial court stated that it was not going to “condone something that was a bad 

mistake and was a mistake that a jury of this county found to be criminal” and that granting 

diversion in this case “would ultimately be no offense whatsoever.” The trial court denied 

judicial diversion based on two factors: the deterrence value to the Defendant and others

and whether judicial diversion would serve the interests of the public as well as the 
- 19 -

defendant. The trial court found that deterrence to the Defendant and to the law 

enforcement community was needed because although Jacky Bean should not have fled 

from the Defendant, “nobody should use a gun for the purpose of stopping someone at all 

costs,” particularly when an innocent person could be shot. The trial court further stated 

that “the issue of killing someone in the process of making an arrest is not a good thing” 

and that “I think our society now realizes that.” The trial court stated that the 

circumstances, the role of law enforcement in our communities, and “current events” 

related to killing someone in the process of an arrest supported a finding that granting 

judicial diversion would not serve the interests of the public. 

The trial court stated that it did not think the Defendant “would do it again, because 

he realizes what happens when you don’t think or when you act out of anger.” The trial 

court also stated that the Defendant “might be qualified” for judicial diversion based on the 

other factors but that either the factor for deterrence or the factor for whether judicial 

diversion would serve the interests of the public as well as the Defendant justified denying 

diversion in this case. The trial court stated that “machoism” may have played a role in the 

Defendant’s decision to chase the Mustang and that the Defendant “should never have been 

alone in a vehicle with full authority to shoot somebody” when he was not a fully trained 

officer. Accordingly, the trial court denied the Defendant’s request for judicial diversion.

“Judicial diversion” is a reference to the provision in Tennessee Code Annotated 

section 40-35-313(a) (2019) for a trial court’s deferring proceedings in a criminal case. See

T.C.A. § 40-35-313(a)(1)(A). Although judicial diversion is not a sentence, pursuant to 

such diversion, the trial court places the defendant on probation “without entering a 

judgment of guilty.” Id. To be eligible or “qualified” for judicial diversion, the defendant 

must plead guilty to, or be found guilty of, an offense that is not “a sexual offense or a 

Class A or Class B felony,” and the defendant must not have previously been convicted of 

a felony or a Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i)(b), (c). Diversion 

requires the consent of the qualified defendant. T.C.A. § 40-35-313(a)(1)(A). “[A] 

‘qualified’ defendant is not necessarily entitled to diversion. Whether to grant judicial 

diversion is left to the discretionary authority of the trial courts.” State v. King, 432 S.W.3d 

316, 326 (Tenn. 2014).

Once a defendant is deemed eligible for judicial diversion, the trial court must 

consider several factors when deciding whether to grant judicial diversion: (1) the 

defendant’s amenability to correction; (2) the circumstances of the offense; (3) the 

defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical 

and mental health; (6) the deterrence value to the defendant and others; and (7) whether 

judicial diversion will serve the interests of the public as well as the defendant. State v. 

Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State v. Parker, 

932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); State v. Bonestel, 871 S.W.2d 163, 168

(Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-
- 20 -

10 (Tenn. 2000). The trial court may consider the following additional factors: “‘[the 

defendant’s] attitude, behavior since arrest, prior record, home environment, current drug 

usage, emotional stability, past employment, general reputation, marital stability, family 

responsibility and attitude of law enforcement.’” State v. Washington, 866 S.W.2d 950, 

951 (Tenn. 1993) (quoting State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App.

1988) (citations omitted)). A trial court must weigh all of the required factors in 

determining whether to grant judicial diversion. Electroplating, Inc., 990 S.W.2d at 229 

(citing Bonestel, 871 S.W.2d at 168). Additionally, “a trial court should not deny judicial 

diversion without explaining both the specific reasons supporting the denial and why those 

factors applicable to the denial of diversion outweigh other factors for consideration.” Id. 

(citing Bonestel, 871 S.W.2d at 168).

Generally, “[s]entences imposed by the trial court within the appropriate statutory 

range are to be reviewed under an abuse of discretion standard with a ‘presumption of 

reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of 

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed 

in light of the factual circumstances and relevant legal principles involved in a particular 

case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 

S.W.3d 235, 242 (Tenn. 1999)). Although judicial diversion is not a sentence, our supreme 

court determined that the standard of review expressed in State v. Bise applies to “appellate 

review for a trial court’s sentencing decision to either grant or deny judicial diversion.” 

King, 432 S.W.3d at 325. Importantly, however, the court emphasized that the adoption 

of the Bise standard of review “did not abrogate the requirements set forth in Parker and 

Electroplating, which are essential considerations for judicial diversion.” King, 432 

S.W.3d at 326.

The trial court need not provide a recitation of all the applicable “factors when 

justifying its decision on the record in order to obtain the presumption of reasonableness,” 

but “the record should reflect that the trial court considered the Parker and Electroplating

factors in rendering its decision and that it identified the specific factors applicable to the 

case before it.” King, 432 S.W.3d at 327. When the trial court considers each of the factors 

enumerated in Parker and weighs them against each other, placing its findings in the 

record, as required by Electroplating, Inc., we “apply a presumption of reasonableness,” 

per Bise, and will “uphold the grant or denial so long as there is any substantial evidence 

to support the trial court’s decision.” Id. When “the trial court fails to consider and weigh 

the applicable common law factors, the presumption of reasonableness does not apply and 

the abuse of discretion standard . . . is not appropriate.” Id. Instead, “the appellate courts 

may either conduct a de novo review or, if more appropriate under the circumstances, 

remand the issue for reconsideration. The determination as to whether the appellate court 

should conduct a de novo review or remand for reconsideration is within the discretion of 

the reviewing court.” Id. at 328.
- 21 -

Turning to the instant case, we conclude that the record does not sufficiently reflect

that the trial court considered all of the applicable factors. The trial court never mentioned 

Parker or Electroplating and did not refer to the seven factors outlined by Electroplating

that the court was required to consider. The trial court did not address the Defendant’s

social history, his physical or mental health, or his lack of a criminal record. The trial court 

also did not mention certain social factors, such as the Defendant’s graduating from high 

school and college, his being an Eagle Scout, and his history of employment, which were 

worthy of consideration. Therefore, we will review the trial court’s denial of judicial

diversion de novo.

Because the parties do not dispute that the Defendant qualifies as a candidate for

judicial diversion, we turn to the Parker and Electroplating factors. First, the Defendant 

expressed remorse for the victim’s death and said he should have stopped the pursuit, 

blocked the road, and waited for backup officers to arrive. Therefore, in our view, the 

Defendant’s amenability to correction weighs in favor of granting judicial diversion. 

As to the circumstances of the offense, the proof at trial showed that on the night of 

the crime, Jacky Bean used methamphetamine, drove a vehicle, was weaving “all over the 

road,” and fled from the Defendant when the Defendant tried to stop him for speeding. The 

only reasons Mr. Bean gave at trial for initially refusing to stop for the Defendant was that 

he did not have a driver’s license and did not want to go to jail. The proof at trial further 

showed that Mr. Bean possessed a gun when he made the U-turn at the end of B Mine 

Road. Mr. Bean brandished the gun at the Defendant, and the Defendant fired at the 

Mustang, striking the windshield. Instead of stopping for the Defendant, Mr. Bean ducked 

down and sped toward him. The Defendant fired at the Mustang again, striking the driver’s 

window as the Mustang passed him. At that point, Mr. Bean could have stopped the 

Mustang, and neither he nor the victim would have been injured. Instead, he struck the 

Defendant’s patrol car and sped away toward Deputy Bean. We note that the duration of 

this incident, from the time the Defendant first encountered the Mustang until he fired the 

final shots into the vehicle, was just five minutes. The duration of the incident on B Mine 

Road was much less than five minutes. 

Nevertheless, we acknowledge that the Defendant fired into the back of the Mustang 

as Jacky Bean tried to leave the scene and that Sheriff Shrum testified the Defendant should 

not have fired into the rear of the car. Moreover, the jury concluded that the victim died 

as a result of being shot by the Defendant, not from the amount of methamphetamine in 

her system. The trial court stated that it was not going to condone the Defendant’s “bad 

mistake” by granting judicial diversion. However, the Defendant’s firing into the Mustang 

and striking the victim are already incorporated into the elements of criminally negligent 

homicide. See T.C.A. § 39-13-212(a); State v. Chyanne Elizabeth Gobble, No. E2014-

01596-CCA-R3-CD, 2015 WL 12978645, at *10 (Tenn. Crim. App. Aug. 12, 2015). The 
- 22 -

trial court also stated that granting judicial diversion “would ultimately be no offense 

whatsoever.” As this court has explained, though,

When a defendant is granted judicial diversion, he or she is placed on 

probation and must comply with all the conditions of probation, including 

supervision by a probation officer. Only when the defendant successfully 

completes probation will the charges be dismissed and the defendant can seek 

to have his or her record expunged. T.C.A. § 40-35-313(a)(2). If the 

defendant violates the terms of probation, the trial court can “enter an 

adjudication of guilt and proceed as otherwise provided.” Id. Judicial 

diversion is not a lack of consequences for one’s actions, but a one-time 

opportunity for certain defendants to avoid a permanent criminal record. 

Anyone who squanders that opportunity by violating the conditions of 

probation will be held accountable.

Id. In our view, the circumstances of the offense weigh in favor of the Defendant. 

As to the Defendant’s social history and physical and mental health, the Defendant 

is divorced but is a good father to his teenage son and younger son and is current on his 

child support payments. He also has sole custody of his young son. The Defendant is an 

Eagle Scout; graduated from high school; earned a four-year college degree; was elected 

to the school board; served as a volunteer fireman; does not use illegal drugs or abuse 

alcohol; and has maintained employment, even after his arrest in this case. He has a cordial 

relationship with his ex-wife, and he reported that he has a strong and close relationship 

with his family. Despite his medical issues, the Defendant described his physical and 

mental health as excellent. Therefore, the Defendant’s social history and physical and 

mental health weigh in favor of granting judicial diversion. 

As to the deterrence value to the Defendant and others, the trial court said it did not 

think the Defendant would repeat his actions. The trial court also said that “nobody should 

use a gun for the purpose of stopping someone at all costs.” In our view, though, the facts 

of this case are unique in that Jacky Bean consumed an illegal substance, got behind the 

wheel of a motor vehicle, fled from a police officer who tried to make a legitimate traffic 

stop of a car traveling almost one hundred miles per hour, brandished a firearm at the 

officer, drove erratically, and struck the officer’s patrol car as he fled from the officer. 

As to the final factor, the trial court found that it weighed against judicial diversion 

because “current events related to killing someone in the process of an arrest supported a 

finding that a grant of judicial diversion would not serve the interests of the public.” The 

trial court did not elaborate on what it meant by “current events.” As this court has quoted 

from our supreme court, 
- 23 -

Judicial knowledge upon which a decision may be based is not the personal 

knowledge of the judge, but the cognizance of certain facts the judge 

becomes aware of by virtue of the legal procedures in which he plays a 

neutral role. No judge is at liberty to take into account personal knowledge 

which he possesses when deciding upon an issue submitted by the parties. In 

other words, “[i]t matters not what is known to the judge personally if it is 

not known to him in his official capacity.”

State v. Kalandra Lacy, No. W2016-00837-CCA-R3-CD, 2017 WL 1969764, at *5 (Tenn. 

Crim. App. May 12, 2017) (quoting Vaughn v. Shelby Williams of Tenn., Inc., 813 S.W.2d 

132, 133 (Tenn. 1991) (citations omitted)). There is no evidence in the record to support 

the trial court’s conclusion that current events related to the death of an arrestee supports 

denying judicial diversion in this case. See id.

The trial court also seemed to rely on its conclusion that the Defendant “should 

never have been alone in a vehicle with full authority to shoot somebody” when he was not 

a fully trained officer. However, Sheriff Shrum testified at trial that the Defendant had 

thirteen years of law enforcement experience prior to his employment with the Grundy 

County Sherriff’s Department and that the Defendant was not required to be POST certified 

as a part-time officer. Sheriff Shrum also testified that the Defendant was “put with a 

supervisor” when he began working for the sheriff’s department but that he completed 

eighty hours of in-service training, which meant POST no longer required that he be 

supervised. Therefore, the record does not support the trial court’s statement. In sum, we 

conclude that factors (6) and (7) do not weigh against granting judicial diversion. Taking 

all of the factors into consideration, we conclude that the trial court erred by denying 

judicial diversion and grant the Defendant’s request. We conclude that the Defendant may 

be placed on judicial diversion for the same period and under the same conditions as were 

previously imposed regarding the sentence of probation. Accordingly, we will proceed to 

examine the Defendant’s claim concerning his community service hours. 

C. Community Service

The Defendant contends that the trial court abused its discretion by imposing an 

excessive number of hours of community service. He asserts that 1,768 hours interferes 

with his employment. The State responds that the trial court properly imposed community 

service in this case. We agree with the State.

Again, we note that “[j]udicial diversion” is a reference to the provision in 

Tennessee Code Annotated section 40-35-313(a) for a trial court’s deferring proceedings 

in a criminal case. See T.C.A. § 40-35-313(a)(1)(A). Although judicial diversion is not a 

sentence, pursuant to such diversion, the trial court places the defendant on probation 

“without entering a judgment of guilty.” Id. The Sentencing Act provides that “the trial 
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court has great latitude in formulating punishment, including the imposition of conditions 

on probation.” State v. Burdin, 924 S.W.2d 82, 85 (Tenn. 1996). The primary purpose of 

probation sentence, however, “is rehabilitation of the defendant,” id. at 86, and the 

conditions of probation must be suited to this purpose. “Once the trial judge determines 

that probation is justified under the circumstances, the conditions imposed must be 

reasonable and realistic and must not be so stringent as to be harsh, oppressive or palpably 

unjust.” Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The Act does not grant to the 

trial court “unfettered authority” to impose any condition on the defendant’s probation but 

limits the court’s discretion to “the bounds of traditional notions of rehabilitation.” Burdin, 

924 S.W.2d at 87; see also State v. Mathes, 114 S.W.3d 915, 918 (Tenn. 2003) 

(disapproving a probation condition that did “not serve either the goal of rehabilitation or 

the goal of deterrence); State v. Robinson, 139 S.W.3d 661, 666 (Tenn. Crim. App. 2004). 

That being said, however, the burden of demonstrating the impropriety of a probation 

condition rests with the defendant. Burdin, 924 S.W.2d at 84.

At the sentencing hearing, the trial court acknowledged that it was imposing an 

“unusually high amount of community service.” The trial court continued, explaining, 

I’ve talked with some folks about this, how [the Defendant] could do some 

community service that would be of benefit, hopefully to him, but also to the 

community. So I’m going to require him in the first two years of his 

probation to work for Blue Monarch, which is a residential recovery unit, on 

their campus from 8:00 a.m. to 4:30 p.m. every Monday and Tuesday for two 

years. He is to follow the direction of the president or her designee. But 

these are young women that have suffered a lot and maybe something that 

you observe can be helpful to them. 

The trial court noted that this arrangement would allow the Defendant to maintain 

other employment while benefitting young women in their community. The trial court 

initially considered having the Defendant perform community service on the weekends but 

staffing issues at Blue Monarch prevented such an arrangement. By assigning the 

Defendant to serve at this particular facility that serves young women, the trial court hoped 

“some good will come out of this whole situation.” The trial court stated its intention that 

this condition would also serve as a “statement” to other officers in Grundy County about 

their duty and service to the community, noting “the idiocy of it all is, I mean, you had his 

license number, you could have gotten him. . . . [I]f he left you’re going to get him, didn’t 

have to stop him.” The trial court imposed a total of 1,768 hours of community service 

based upon the schedule arranged with Blue Monarch.

The trial court imposed a special condition of probation requiring the Defendant to 

work every Monday and Tuesday at Blue Monarch Women’s Rehabilitation Center for the 

first two years of his three-year probation sentence. Tennessee Code Annotated section 
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40-35-303(d) permits trial courts to impose conditions of probation that are “reasonably 

related to the purpose of the offender’s sentence and not unduly restrictive of the offender’s 

liberty, or incompatible with the offender’s freedom of conscience[.]” Mathes, 114 S.W.3d 

at 918, see also T.C.A. § 40-35-303(d)(9). The Defendant was convicted of negligently 

shooting and killing a twenty-year-old woman in the course of stopping a driver for a traffic 

violation. The trial court imposed a three-year probation sentence, allowing the Defendant 

to remain in the community rather than incarceration. The trial court, however, balanced 

the alternative sentence with a significant community service requirement aimed at the 

Defendant serving young women in the community. In our view, the special condition

imposed complies with the language of Mathes and with Tennessee Code Annotated 

section 40-35-303(d)(9). It also complies with Tennessee Code Annotated section 40-35-

303(d)(3), which allows a trial court to order a defendant, without compensation, to 

perform service to the community.

The Defendant complains that the imposition of 1,768 hours of community service 

conflicts with his ability to work. There is nothing in the record, however, that indicates 

how the condition impairs his ability to work. As noted previously, it is the Defendant’s 

burden to demonstrate the impropriety of a probation condition. Burdin, 924 S.W.2d at 84. 

Without any evidence about the Defendant’s employment schedule, we cannot conclude 

that the sentence interferes with his employment. The Defendant is not entitled to relief.

 

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the 

trial court erred by denying judicial diversion and grant the Defendant’s request. The trial 

court’s judgment is affirmed in all other respects.

____________________________________

ROBERT W. WEDEMEYER, JUDGE